Poel v Poel

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WINN,LORD JUSTICE SACHS,SIR GORDON WILLMER
Judgment Date24 Jul 1970
Judgment citation (vLex)[1970] EWCA Civ J0724-5

[1970] EWCA Civ J0724-5

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: His Honour Judge Potter - Kingston-upon-Thames County Court)

Before:

Lord Justice Winn

Lord Justice Sachs and

Sir Gordon Willmer

Linda May Poel (otherwise Elson)
and
Geoffrey Edward Poel

Mr. R.A.W. SEARS (instructed by Messrs. Bowles & Co., Epson, Surrey) appeared on behalf of the Appellant (wife, Petitioner).

Mr. T. GUEST (instructed by Messrs. Peacock & Goddard) appeared on behalf of the Respondent (Husband, Respondent).

LORD JUSTICE WINN
1

This is an appeal from Judge Potter, brought with his leave, from a decision of his given quite recently, on the 17th July of this year, by which he rejected an application mad to him for leave to take a little boy out of the jurisdiction to New Zealand. The boy concerned is one Stephen John Poel, whose mother has now re-married and is Mrs. Elson. She was married on the 3rd April, 1965, to Mr. Poel (whose name is Geoffrey Edward, her own being Linda May), at a time when she was 22: she is now 27 years of age. It is a feature of this case not at all insignificant that at the time when she married she understood that her bridegroom was contemplating emigration to Australia; and again in 1966 he apparently tentatively but almost finally decided that he would emigrate when she brought a petition alleging cruelty against him. She said of that matter: "In the autumn of 1966 the Respondent decided that he would emigrate to Australia. The Petitioner was very anxious to go and all arrangements were made. At the very last moment the Respondent changed his mind and refused to continue with the project. In consequence the Petitioner was forced to move to a flat in Parnham which she found unattractive and isolated". There were other matters of complaint that she had against her husband when she filed a petition against him alleging cruelty, the date of which was 1st August, 1969.

2

She had in May of 1969 left her husband and had taken this boy, whom I have already named, with her. The petition was not defended. It was heard on the 24th October, 1969, by the same judge, His Honour Judge Potter, at Kingston-on-Thames, at a time when, of course, the boy was not quite two years of age. There was no dispute as to an order for custody which was asked for before the making of the decree nisi.

3

Mrs. Elson (as she now is) married again on the 14th February, 1970, a man of 29 years of age. She is expecting a baby by him in November of this year. He wishes to emigrate to NewZealand, being a man who has employment as a scaffolder and has obtained a firm job with Safeways scaffolding Limited of Auckland, New Zealand, who have agreed to pay him a wage of between £35 and £40 a week. He has some knowledge of New Zealand, because before he left the Merchant Navy at the beginning of 1969, in which Service he was for ten years, he travelled all over the world, including about 18 months in New Zealand, and he has friends there. One particular friend has agreed to land him his bungalow when he is away at sea, as he will be most of the time, on Washakie Island, Auckland. Mr. Elson is confident, and justifiably so, that he can make a new life, and a good one, for himself and his wife and this boy and the child that is coming, in New Zealand. He has saved up about £3,000, which is very much to his credit, and he has a car worth about £500. He is prepared to pay the fares for the lot of them to New Zealand, and is obviously a deserving, good type of man, and able to offer a prospect of a good life, it would seem on the face of it.

4

It is impressive to me at least, and, I rather think, to all members of the court, to know that the judge, His Honour Judge Potter, was told by Mr. and Mrs. Elson, by affidavit, and it was made quite clear by counsel on instructions, that if leave to take the boy to New Zealand were not granted by the judge then Mr. and Mrs. Elson would give up their plan to go New Zealand. They were prepared to be unselfish in that very substantial respect.

5

It seems to me that in approaching this very finely balanced problem — which involves a difficult and a sad decision — the court should have regard primarily to the welfare of the child. Just as in concerned with the subsequent issues resulting from the making of a custody order. It seems to me personally that the welfare of the child is the primary consideration which should weigh with the court. Further, it is to be regarded, I think, as a very dominant factor in such a dispute that there has been an order (which in fact was not resisted) for custody in favour of the one parent, in this case the mother, and that there isevery indication that the custody thus ordered has been working satisfactorily in every respect; and that although, naturally, the other parent will feel — and this father does feel — that the access permitted to him is not all that he would wish, in no other respect is it suggested in the slightest degree that the custody arrangements have been anything but entirely beneficial to the child and satisfactory in general to the parties concerned.

6

In a sense the child has been since February, 1970, one of the family - comprised in the family - of the stepfather, Elson. He has a legitimate motive in going to New Zealand. It may be that he wishes to go again to a climate which he has enjoyed in the past and to surroundings in an agricultural type of country which he finds pleasant and enjoyable. He has no bad motive, so far as can be seen, in wishing to go, and in going he must wish to take with him, such things being natural, his wife and the child who is already there and the child who is coming. His right to do what he chooses with his life and to live where he chooses is, of course, in conflict, as the matter stands at this very moment, with the view of the court...

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